With the number of Request For Evidences (RFEs) and denials that were issued by USCIS in the cap filings, petitioners must take a more proactive approach to filing, and should not file H-1B cases as they did in the past. We are utilizing new legal strategies to file proactively and address potential issues as raised during the cap season. By doing so, we are strengthening cases upfront, with the goal to minimize the number of RFE inquiries. 

When USCIS reviews a case and finds that evidence is lacking, USCIS may issue a RFE, requesting the missing evidence. Many of the RFEs issued in the past were 10 to 15 pages long and required a great deal of effort on behalf of petitioners to address.

Once a petitioner responds to the RFE, USCIS issues an approval or denial, based on a review of the RFE materials submitted. It is critical to understand the RFEs that were issued in the recent cap season and address them in the cap filings to avoid denials.

Below are a few examples of the strategies we are employing to address one of the most prevalent RFE issues of the past year – whether a job is in a Specialty Occupation. In other words, USCIS is questioning whether the offered position requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation.

1. Select appropriate SOC codes

Ensure that the job duties reflect the correct and appropriate SOC code in the LCA. This involves strategy and discussion between your legal and HR teams, as it involves an analysis of the job duties compared to certain occupations that qualify as Specialty Occupation. Also, certain occupations that may normally be problematic as Specialty Occupations, may qualify as a Specialty Occupation, if handled appropriately at the filing stage.

2. Obtain Specialty Occupation Opinions / Industry Opinions Pre-Filing 

Identify employees or colleagues who have significant experience in the relevant field, and work with your attorney to determine whether they qualify as industry expert, and have them write an opinion as to why the job is a Specialty Occupation. We provide the experts with samples and have a training session for them in opinion writing. Using a known person costs little to no money (if needed, a professor’s opinion can be obtained if there is still a RFE issued) and USCIS may accept this industry opinion at filing stage, thereby preventing a Specialty Occupation RFE.

3. Use the correct educational requirements in the petitioner, client and/or vendor letters.

This is applicable to third party placements. Ensure that the educational requirements stated in those letters correspond to the SOC code in the LCA, and therefore strengthens the Specialty Occupation evidence. We provide templates and samples that have successfully worked in past cases for petitioners, end-client, and vendors to use. We also have conference calls/information sessions for end-clients and vendors, to assist in addressing USCIS requirements.

4. Ensure appropriate advertisements from other companies are provided up-front.

This is a beneficial step because it establishes to USCIS that your requirements for the job are consistent with industry requirements. It is not beneficial to submit advertisements of a job that states various unrelated educational fields as a requirement or may state different experience as a requirement. USCIS often dismisses advertisements when ads are not comparable to the job, meaning they have different requirements than yours. For example, if your job requires a bachelor’s degree in computer science, a comparable job would not require a master’s degree in electrical engineering. USCIS will likely dismiss this. We work with our clients to identify appropriate advertisements for submission to USCIS. 

5. Show that Petitioner hires individuals with similar requirements.

Petitioners must categorize their employees per occupation. It is important to work with your legal team to do this appropriately. We work with our clients to ensure this evidence is presented in the strongest manner. For example, if the H-1B is being applied for a Software Developer, present the information in a manner that establishes that your company hires only software developers with qualifications which would make the position eligible as a Specialty Occupation. This is very tricky and is often mishandled when done haphazardly! Showing that a petitioner does hire individuals with the requisite qualifications into the same occupation is critical. However, not all employees will have the qualifications based on education alone, in which case, the categorization must be done with care, to show that all these employees are indeed qualified, and the job is therefore a Specialty Occupation.

We are employing these strategies at the filing stage of a case.  We also employ certain strategies for issues such as Employer-Employee Relationship, Availability of Off-site or In-house Work, etc.